FOREWORD. Keith Brown Convenor, Heads of Workplace Safety & Compensation Authorities

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1 FOREWORD This publication is an initiative of the Heads of Workplace Safety and Compensation Authorities (HWSCA). The HWSCA comprises the Chief Executives from all ten Australian Commonwealth State and Territory workers compensation schemes and the New Zealand Accident Compensation Corporation. It is a body whose prime purpose and role is to share information between jurisdictions and, where possible, promote increased national consistency in the design of Australian workers compensation schemes. Workers Compensation Arrangements in Australia and NZ Jurisdictions has been compiled from information supplied by the HWSCA jurisdictions and is revised yearly in November. The information in this edition is current as at 1 October The current publication can be accessed via the Internet on the HWSCA website at and the Victorian WorkCover Authority website at Should you have any comments on, or suggested improvements to the contents, please let us know by using the feedback facility on the HWSCA website or by writing to the workers compensation body in your jurisdiction (contact details on page 50). I would also like to draw your attention to some recent publications which have been produced under the auspices of the Workplace Relations Ministers Council (formerly the Labour Ministers Council). Comparative Performance Monitoring: Occupational Health and Safety and Workers Compensation (August 2001) and Comparison of Occupational Health and Safety Arrangements in Australian Jurisdictions (May 1999) 1 will provide readers interested in Australian workers compensation schemes and authorities with a useful and informative supplement to this publication. Keith Brown Convenor, Heads of Workplace Safety & Compensation Authorities 1 Both publications can be accessed through the Department of Employment, Workplace Relations and on their website page 1

2 CONTENTS BASIC STATISTICAL INFORMATION SCHEME DETAILS Scheme Name Legislation Responsibility for OH&S legislation Fund type Funding position at 1 October Employer excess Number of reported claims Average premium rate Provision for self-insurance COVERAGE Definition of remuneration Number of workers covered Definition of worker Definition of injury Retirement provisions Cross border cooperative arrangements BENEFITS Weekly benefit rates Basis for determining weekly benefits Medical and hospital - limits Basis for medical and like service fees Lump sum payments Death benefits Common law rights Threshold for common law page 2

3 CONTENTS STATUTORY RESPONSIBILITIES Return to work provision Employer responsibilities Worker responsibilities Incentives for new employers of injured workers DISPUTE RESOLUTION PREMIUM SETTING Industry rates comparison table Notes to industry rates comparison table Calculation of industry rates RECENT DEVELOPMENTS Summary of significant legislative changes Other significant developments FURTHER INFORMATION Contacts Internet addresses Mailing lists form page 3

4 STATISTICAL INFORMATION STATISTICAL INFORMATION AUSTRALIA VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Area (Square kilometres) 7,682, , , ,000 Population (June 2000) 19,157,037 4,765,856 6,463,455 1,497,634 Population, 15 years & over (August 2001) 15,441,900 3, ,209,700 1,212,900 Labour force (August 2001) 9,768,200 2,455,100 3,242, ,000 Unemployment rate (August 2001) 6.6% 6.2% 5.9% 7.2% Gross earnings (June Qtr 2001) $65,581.7M $18,140M $22,678.2M $4,230.5M Average weekly earnings (All Employees - October 2001) $ $ $ $ page 4

5 STATISTICAL INFORMATION WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND 2,525,000 1,727,000 68,000 1,346,000 2, ,021 1,833,860 3,566, , , ,839 3,849,000 (June2001) 1,514,000 2,863, , , ,700 2,975,800 (June 2001) 1,003,000 1,848, , , ,900 1,820,000 (March 2001) 6.5% 7.9% 10.2% 7.4% 4.6% 5.2% (June 2001) $6,641.6M $10,944.3M $1,194.5M $782.4M $1,609M $13,497M $ $ $ $ $ $NZ (All employees - June 2001) page 5

6 SCHEME DETAILS SCHEME DETAILS COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Scheme name Comcare, Seacare Victorian WorkCover Authority WorkCover NSW WorkCover Corporation WorkCover legislation Safety, Rehabilitation and Compensation Act 1988; Defence Act 1903 (allows for additional compensation for the Australian Defence Force from 07/04/94) Seacare: Seafarers Rehabilitation and Compensation Act 1992 Accident Compensation Act 1985; Accident Compensation (WorkCover Insurance) Act 1993 Workplace Injury Management and Workers Compensation Act 1998; Workers Compensation Act 1987; Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987; Workers Compensation (Dust Diseases) Act 1942; Sporting Injuries Insurance Act 1978 Workers Rehabilitation and Compensation Act 1986 Responsibility held for OHS legislation and related legislation Yes Occupational Health and Safety (Commonwealth Employment) Act 1991 Seacare: Occupational Health and Safety (Maritime Industry) Act 1993 Yes Occupational Health and Safety Act 1985; Dangerous Goods Act 1985; Equipment (Public Safety) Act 1994; Road Transport (Dangerous Goods) Act 1995 Yes Occupational Health and Safety Act 2000; Factories, Shops & Industries Act 1962; Dangerous Goods Act 1975 Yes Occupational Health, Safety and Welfare Act 1986 Fund type Central Fund Central Fund Managed Fund Central Fund Seacare: Authorised Insurers (No set rates - a private system) Scheme s funding position at 30 June 2001 and/or 30 June /06/01: Assets: $838.8M Liabilities: $643.3M Funding Ratio: 130.4% 30/06/01 Assets: $4,855M Liabilities: $5,538M Funding Ratio: 87.7% 30/06/01: Assets: 6,443M Liabilities: 9,199M Funding Ratio: 70% 30/06/00: Assets: $814M Liabilities: $836M Funding Ratio: 97.3% 30/06/00: 30/06/00: 30/06/00: 30/06/99: Assets: $827.0M Assets: $4,410M Assets: 6,317M Assets: $715M Liabilites: $622.6M Liabilities: $4,834M Liabilities: 7,956M Liabilities: $744M Funding Ratio: 132.8% Funding Ratio: 91.2% Funding Ratio: 79% Funding Ratio: 96% NB: Excludes pre-premium claims Seacare: N/A Employer excess * Unless otherwise stated, information provided applies to both Comcare and Seacare page 6 No excess - scheme coverage from first day of incapacity Seacare: Employer excess varies between employers First 10 days of incapacity, and first $466 of medical costs. Buy out option also exists (25% of premium) Category A employers (annual premiums > $3,000): first $500 of weekly payments for each claim. Category B employers (annual premiums < $3,000): first $500 or payment of excess surcharge on premiums of 3% First two weeks of incapacity per worker per calendar year. Option for buy-out first two weeks by paying an extra percentage of the levy rate (8% in 2000/2001)

7 SCHEME DETAILS WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND WorkCover Western Australia WorkCover Queensland WorkCover Tasmania Work Health WorkCover Accident Compensation Corporation Workers Compensation and Rehabilitation Act 1981 WorkCover Queensland Act 1996 Workers Rehabilitation and Compensation Act 1988 Work Health Act 1986 Workers Compensation Act 1951 (updated 21 December 2000) Accident Insurance Act 1998 No No Monitoring, promotional and advisory functions only. Workplace Health and Safety Act 1995 Yes Yes Occupational Health and Safety Act 1989; Dangerous Goods Act 1984 No Appoved Insurers (Essentially private insurance. Loading of 100% allowable on set premium and full discounting allowed. The Workers Compensation and Rehabilitation Commission may approve a loading in excess of 100%) Central Fund Approved Insurers (No set rates - a private system) Appoved Insurers. (No set rates - a private system) Approved Insurers. (No set rates - a private system) Central Fund (between 1/7/99 and 30/6/00 approved insurers; no set rates - a private system) N/A 30/06/01: Assets: 2,444M Liabilities: $1,844M Funding Ratio: 132.5% 30/06/00 Assets: 2,547M Liabilities: $2,028M Funding Ratio: 125.6% N/A N/A N/A 30/06/01 ($NZM) Assets: 1,381 Liabilities: 2,822 Funding Ratio: 49% 30/06/00 ($NZM) Assets: 1,171 Liabilities: 2,634 Funding Ratio: 44% No excess - scheme coverage from first day of incapacity 4 days excess plus day of injury. Option to buy-out excess at the greater rate of 8.5% of premium or $10 First 5 working days of each injury and first $ of other benefits Day of injury only No medical costs No excess - scheme coverage from first day of incapacity No medical costs For work injuries, the employer is liable to cover first week after incapacity for work begins page 7

8 SCHEME DETAILS SCHEME DETAILS COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Number of reported claims per financial year : 19, : 19, : 21, : 24, : 28, : 32, : 34,979 NB: Includes Self- Administrators & Delegated Authority 00-01: 32, : 31, : 31, : 30, : 31, : 32, : 32, : 53, : 55, : 58, : 60, : 62, : 62,840 NB: Revised to Conform to National Data Set, i.e. excludes claims less than 5 days 99-00: 31, : 30, : 32, : 34, : 37, : 39,630 Seacare: : : : : : : : 593 Average premium rate per financial year : 1.00% : 3.36% : 0.98% : 3.12% : 1.03% : 2.77% % 00-01: 2.22% 99-00: 1.90% 98-99: 1.90% 97-98: 1.80% 96-97: 1.80% 95-96: 1.98% 01-02: 2.80% : 2.80% : 2.80% 98-99: 2.80% 97-98: 2.80% 96-97: 2.80% 95-96: 2.50% 01-02: 2.46% 00-01: 2.86% 99-00: 2.86% 98-99: 2.86% 97-98: 2.86% 96-97: 2.86% 95-96: 2.86% : 1.00% : 2.60% 2 1 Excludes New Tax System effects : 1.20% : 3.00% : 1.60% : 5.00% : 1.70% : 5.20% 2 1 Commonwealth Agencies 2 ACT Government Service Seacare: : N/A : N/A % Do provisions for self-insurance exist? Yes Seacare: No Yes Yes Yes (known as exempt status) Number 10 self-insurers (including 8 self-administrators, 5 of which have outsourced claims processing) 1 delegated authority Seacare: N/A 35 self-insurers 50 self-insurers 12 group self-insurers 6 specialised insurers (i.e insurers restricted to particular industry clauses) and a state public sector insurer (the Treasury Managed Fund) 66 self-insurers plus Government Departments and Authorities Criteria * Unless otherwise stated, information provided applies to both Comcare and Seacare page 8 Prudential Requirements, Claims administrators; capacity to meet prescribed conditions of licence Seacare: N/A Prudential Requirements 1000 NSW workers Prudential Requirements 200 workers Prudential Requirements

9 SCHEME DETAILS WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND 99-00: 24, : 24, : 27, : 27, : 28, : 28,594 NB:This data represents the number of lost time claims (one day/shift or more) NB: Snapshot figure taken on 31/12/ : 85, : 82, : 80, : 79, : 85, : 93, : 100,530 1 This data represents all reported claims, including those of less than 5 days, and includes self-insurer claims 00-01: 11, : 11, : 12, : 13, : 14, : 16, : 3, : 4, : 4, : 4, : 4, : 4, : 3, : 3, : 3, : 4, : 4, : 4, : 4, : 19, : 15, : 28, : 37, : 45, : 49, : 48,140 NB: From 1/7/99 to 30/6/00 Employers were insured by the private market and Self Employed had the option of being insured by the private market or by ACC. These numbers include only claims made by employees and self employed covered by ACC. Data relates to new work injury claims for all categories of earner (employee, self-employed etc). lodged with ACC each year, for claims that required more than minor medical fee reimbursements. Figures 01-02: 2.63% 00-01: 2.97% 99-00: 3.09% : 2.73% 97-98: 2.40% 96-97: 2.67% 95-96: 2.61% % between 1/7/99 and 31/10/ % between 1/11/99 and 30/6/ : 1.55% : 1.75% 99-00: 1.85% : 2.145% : 2.145% : 2.023% 95-96: 1.85% 2 1 This is the target rate inclusive of 10% surcharge 2 10% surcharge introduced 01/01/96 3 Surcharge removed for periods of insurance after 1/7/99 4 Excludes GST 01-02: N/A 00-01: 3.04% 99-00: 2.9% 98-99: 2.7% 97-98: 3.1% 96-97: 3.2% 95-96: 3.02% NB: Average rates calculated by scheme actuary 01-02: N/A 00-01: N/A 99-00: 2.33% 98-99: 1.90% 97-98: 1.53% 96-97: 1.50% 95-96: 1.60% NB: Figures supplied by approved insurers 01-01: N/A 00-01: N/A 99-00: 3.1% 98-99: 2.6% 97-98: 2.12% 96-97: 2.50% 95-96: 2.41% NB:There is no stamp duty payable on workers compensation premiums 31/3/ % 9 mths to % Year to 30/06/ % 30/06/ % 30/06/ % 30/06/ % 30/06/ % NB: An additional levy is added to ensure full funding by 30/06/2014 In 2000/01 it was 0.40%, in 2001/02 the average levy is 0.35% NB: All rates are inclusive of stamp duty Yes Yes Yes Yes Yes Yes 24 self-insurers 23 self-insurers 2000 full-time workers for new applicants 18 self-insurers including state service 5 self-insurers 7 self-insurers 183 self-insured accredited employers Prudential Requirements Prudential Requirements Prudential Requirements Prudential Requirements Prudential Requirements Prudential, Systems and Procedure Requirements page 9

10 COVERAGE COVERAGE COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Definition of remuneration for the purpose of defining premium Includes gross wages/salaries (including condition of service payments normally covered by gross wages e.g. sick leave, annual leave, maternity leave, long service leave); overtime; over-award payments; penalty rates; piece work payments; public holidays payments; statutory officers salaries; allowances for reward of merit; holiday leave loading (if absorbed into wages/salaries); generally, any taxable allowances It does not include superannuation payments; workers compensation benefits; district and remote locality allowances; any payments made on termination of employment (e.g. accrued long service leave/annual leave); payments for special expenses; performance pay; tool allowance; fringe benefit allowances and administration costs; holiday leave loading (if paid separately from wages/salaries); generally, any non-taxable allowances Gross wages; salaries (including overtime and all pay loadings); bonuses; commissions; allowances; items included as part of employment package; any other fringe benefits and any superannuation benefits The following are exempt: apprentice & trainee remuneration; workers compensation payments; shareholder dividends; partners drawings; payments for Construction Industry Long Service Leave Board and Redundancy Payments Central Fund (only if not taxable as fringe benefits); termination payments; and exempt benefits under the Fringe Benefits Tax Assessment Act 1986 Includes salary; overtime; shift and other allowances; overaward payments; bonuses; commissions; payments to working directors; payments for public and annual holiday (including loadings); sick leave payments; value of board and lodgings provided by employer for worker; any other consideration in money or money s worth given to the worker under a contract of service or apprenticeship It does not include: any sum that the employer has been accustomed to pay the worker because of the nature of the employment; any allowance to reimburse costs arising out of any obligation incurred under a contract; any amount expended on behalf of the worker; director s fees; compensation under the Act; any payment for long service leave or any payment under the Building and Construction Industry Long Service Payments Act 1986 As a guideline: Payments made to or for the benefit of a worker (quantified in monetary terms) but excluding: workers compensation payments; termination payments or severance payments; payments as a reimbursement for a specific expenditure by worker on behalf of employer; motor vehicle allowance for use of worker s own vehicle in the course of employment which is less than 56 cents per kilometre travelled; accommodation allowance which is less than $ per day Number of workers covered : N/A : 309, : 306, : 362, Includes self-insurers and the delegated authority Seacare: : 2, : 2, : N/A 00-01: 1,960, Estimate based on ABS data for March quarter N/A 00-01: N/A 99-00: 2,497, : N/A 00-01: N/A 99-00: 679, : 671, Approx. 36% of all SA workers are employed by Self insurers Definition of worker for purpose of coverage relationship to employment Contract of service Contract of service Contract of service Contract of service * Unless otherwise stated, information provided applies to both Comcare and Seacare Deemed workers Seacare: N/A page 10

11 COVERAGE WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND All gross wages; salaries; remuneration; commissions; bonuses; overtime; allowances and the like; directors fees and all other benefits paid (whether at piece work rates or otherwise, and whether paid in cash or in kind) to, or in relation to, a worker before the deduction of income tax Termination payments; retirement pay; retrenchment pay in lieu of notice; superannuation payment(s); pensions; golden handshakes or weekly payments of compensation do not have to be declared 01-02: N/A 00-01: N/A 99-00: 772, From ABS data Wages; salary; other earnings by way of money or entitlements having monetary value, but does not include: allowances for travelling; car; removal; meal; education; living away from home or in the country; clothing; tools; vehicle expenses; employer contributions to superannuation; lump sum payments on termination; an amount payable under section 70 of the WorkCover Queensland Act employer s liability for excess period Any benefits and allowance, such as additional superannuation, motor vehicle usage, etc., provided under salary sacrifice arrangements are declarable 01-02: N/A 00-01: 1,583, Based on ABS data (employed wage and salary earners, QLD) as at February 2000 The Workers Rehabilitation and Compensation Act 1988 refers to wages for the purpose of defining premium. Wages includes the monetary value of all payments made to a worker, whether in cash or in kind, in return for the worker s labour and includes: Any amount paid or payable by way of remuneration to a person holding office under, or in the service of, the Crown; Any amount paid or payable to a person or class of persons taken to be a worker under this Act to the extent to which that payment is attributable to labour; Any amount paid or payable by a company by way of remuneration to a director or member of the governing body of that company; The value of the provision by the employer of meals or sustenance or of the use of premises or quarters as consideration or part consideration for the worker s services; The value of fringe benefits within the meaning of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth; All superannuation contributions forming part of the worker s salary package, made by the employer in respect of the worker. The following are specifically excluded from the definition of wages: Any allowance for travelling or accommodation; Any workers compensation payment; Any redundancy, severance or termination payment 01-02: N/A 00-01: approx.160,000 Gross wages; salaries (including overtime); bonuses; allowances; commission and all other remuneration paid; including pay in respect of holidays; sickness and long service leave 01-02: N/A 00-01: N/A 99-00: approx. 74,000 Salary; overtime; shift and other allowances; bonuses; commissions; payments to working directors; public and annual holiday payments (including loadings); sick leave payments; value of board and lodging for worker; and any other money or money s worth given to the worker under a contract of service or apprenticeship Also includes: payment (whether commission, fee, reward otherwise) under a contract (whether termed a contract, agreement, arrangement or engagement) to a person deemed to be a worker Does not include any payments for special expenses incurred by the worker because of the nature of the employment; reimbursement allowances for costs arising from obligations incurred under a contract; amount expended on behalf of the worker; directors fees, compensation under the Workers Compensation Act 1951;or payment for long service leave; a lump sum payment instead of long service leave or any payment under the Long Service Leave (Building & Construction Industry) 01-02: N/A 00-01: N/A 99-00: N/A 98-99: 73,700 NB: ACT Public Service covered under Comcare The Accident Insurance Act defines earnings according to the following three categories: Earnings as an employee means all gross source deduction payments (i.e. taxable wages) of the person, but does no include social security benefit, student allowance, redundancy payment, retiring allowance or superannuation scheme pension. Earning as a selfemployed person is defined as their annual assessable income, after expenses are deducted, that results from personal exertions.this definition includes Private Domestic Workers. Earnings as a shareholder employee is defined as any earnings as an employee, and/or any further salary representing payment for services provided as an employee or director of the 1,820,000 as at March 2000 (Approx. 263,000 fulltime employees are covered by selfmanaging accredited employers) Contract of service Contract for service In some situations contractors and subcontractors also may be defined as workers, depending on the circumstances of their working arrangement As of 1 July 2000, a worker is an individual under a contract of service. Schedule 2 of the Act mentions persons who are and are not workers. Workplace Personal Injury Insurance is available for Eligible Persons (not deemed workers). Contract of service Contract of service Exclusion applies where ABN has been provided Contract of service An earner is an employee, selfemployed person, shareholder employee or private domestic worker Not included N/A page 11

12 COVERAGE COVERAGE COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Definition of Injury for the purpose of coverage Relationship to employment a physical or mental injury arising out of, or in the course of, the employee s employment an injury arising out of, or in the course of any employment personal injury arising out of, or in the course of employment physical or mental injury which arises out of, or in the course of employment Contribution of employment To a material degree (for disease only) A significant contributing factor A substantial contributing factor A substantial cause (for stress only) Aggravation, acceleration, etc. Diseases Recess claims On/off worksite On/off worksite On/off worksite On worksite only Journey claims - to/from work Not (with some restrictions) Not included unless there is a real and substantial connection between the employment and the accident Stress specific exclusion factors Industrial deafness 20% 10% 6% threshold Amendments to the SRC Act mean that for claims after the date of effect for the * Unless otherwise stated, information provided applies to both Comcare and Seacare amendments, the threshold will be 5% binaural loss page 12 5%

13 COVERAGE WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND a personal injury by accident arising out of or in the course of the employment a personal injury arising out of, or in the course of, employment An injury, or a disease, arising out of, and in the course of employment a physical or mental injury out of or in the course of employment personal injury arising out of, or in the course of employment a personal injury that the insured suffers while he or she is at any place for the purposes of his or her employment To a significant degree (for disease only) A significant contributing factor To a substantial degree only if it is the major or most significant factor (for disease only) for diseases and injuries that occur gradually Not included Workplace must have been a cause or a contributing factor in cases of gradual process, disease and infection injuries unless original claim resolved, in which case treated as a new injury, subject to the criteria of section 33 of the AIA On/off worksite On/off worksite On worksite only On/off worksite On/off worksite At place of employment Not included, however workers are covered for injury during journeys in the course of employment or at the direction of the employer (with some restrictions) Not included (with some restrictions), if transport is provided by the employer, for the purpose of transporting employees, and is driven by or at the direction of the employer; or travelling between a workplace and a place of treatment for a work related injury, however certain requirements must be met Claims only allowed for Stress caused by physical injury Stress caused by sexual abuse 10% (Above baseline hearing loss previously assessed) 5% A further application may be considered only if lodged more than 3 years after the previous application and claimant has sustained a further hearing diminution of more than 1% 5% binaural hearing impairment 5% whole person impairment (percentage of loss of whole body) Nil No threshold is specified. Covered under the gradual process provisions page 13

14 COVERAGE COVERAGE COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Retirement Provisions Comcare: Section 23 of the Safety, Rehabilitation and Compensation Act states that compensation for incapacity is not payable to a person who reaches the age of 65 years. However section 134 states that when former employees to whom section 131, 132, or 132A (special transitional provisions relating to former employees) applies reach 65, their amount of compensation payable per week shall be reduced by a formula defined in the Act. Following amendments to the SRC Act in October 2001, an employee who suffers a compensable disease or injury at any age after 63 years is entitled to receive incapacity benefits under the Act for a maximum period of 104 weeks. Seacare: Under Section 38 of the Seafarers Rehabilitation and Compensation Act 1992, compensation for incapacity is not payable to a person who reaches the age of 65 years, except in the case of a person who is injured after the age of 64 years, in which case compensation is payable for 12 months All other benefits (such as medical and permanent impairment) are payable in full, irrespective of a person s age at the time of injury, without any time limits on their payment Section 5 of Accident Compensation Act 1985 defines retirement age as: (a) if there is a normal retiring age for workers in the occupation in which the worker was employed at the time of the injury - that age; or (b) the age of 65 years whichever is earlier A worker is not entitled to weekly payments after attaining retirement age However, if a worker is injured within 52 weeks of attaining retirement age or after attaining retirement age, the worker is entitled to weekly payments for the not more than the first 52 weeks (whether consecutive or not) of incapacity for work Section 52 of the Workers Compensation Act 1987 provides that a worker s entitlement to weekly compensation benefits continues only until one year after the age at which the worker would become eligible to receive the age pension If the injury occurs after this age weekly benefits will be paid for one year after the date of injury Other benefits such as hospital, medical, rehabilitation costs and access to common law and lump sums are able to be claimed irrespective of age (These restrictions do not apply to injuries received before 30 June 1985) Section 35(5) of the Workers Rehabilitation and Compensation Act 1986 states that weekly benefits cease at normal retirement age, this is defined as either the normal retirement age for workers in employment of the kind from which the worker s disability arose, or 65 years of age, whichever is the lesser Section 35(5A) states that workers who are within six months of retirement age, or have passed the normal retirement age for the industry and are still in employment, are entitled to weekly payments for a period of up to six months; this does not apply to working directors, or to contractors No weekly payments are payable after a worker reaches 70 years of age * Unless otherwise stated, information provided applies to both Comcare and Seacare page 14

15 COVERAGE WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND Section 5 of the Act defines notional residual entitlement Section 24A - Lump sum compensation for noise induced hearing loss Section 56 - Entitlements to weekly payments ceasing on account of age Section 68 - Calculation of lump sum Section Weekly payments after the age of 64 Schedule 5 - Where a worker attains the age of 65 she/he is entitled to receive the supplementary amount if it can be proved the worker was going to work beyond the age of 65 (until age 70) Workers suffering disability after age 64 years have a period of one year for payment of weekly compensation from the date of disability Special provisions apply to workers suffering asbestos-related diseases There are no provisions in the Act that refer to retirement age Entitlement to benefits cease when: (a) incapacity because of the injury ceases; or (b) worker has received weekly compensation for 5 years of incapacity; or (c) the statutory maximum compensation amount is reached - $127,900 1 (this includes lump sum for permanent impairment and weekly compensation amounts); or (d) 28 days after an offer of lump sum compensation for permanent impairment is made; or (e) WorkCover and the worker agree on an amount that redeems WorkCover s liability to make weekly payments; or (f) when entitlement to weekly compensation is reviewed and the entitlement is ceased (e.g. no longer incapacitated due to injury) 1 Refer to Queensland Recent Developments p.44 Section 87 of the Act provides that (1.) Subject to subsection (2.), an entitlement of a worker to weekly payments of compensation ceases: (a) if the injury occurs on or before the date on which the worker attains the age of 64 years, on his/her attaining the age of 65 years; or (b) if the injury occurs after the date on which the worker attains the age of 64 years, on the date one year after the injury occurs (2.) Where the terms and conditions of a workers employment are such as to permit him/her to continue in that employment beyond the age of 65 years, the worker may refer to the Tribunal for determination the question as the whether or not the provision of subsection (1) should apply (3.) Pursuant to subsection (2.), if the Tribunal is satisfied: (a) that the terms of the worker s employment would have entitled him/her to continue in that employment beyond 65 years, and the worker, but for the injury refer to subsection (1.), intended to continue in that employment beyond that age; and (b) that the incapacity of the worker resulting from that injury will continue beyond the date the worker attains the age of 65 years; the Tribunal may determine that weekly payments may be continued beyond the dates mentioned in subsection (1) and shall determine period for which such payments are to be continued Section 65 of the Act refers to long term incapacity A worker will be paid 75% of his/her loss of earning capacity until: (a) he/she attains the age of 65 years; or (b) if the normal retiring age for workers in the industry or occupation in which he/she was employed at the time of the injury is more than 65 years, he/she attains that normal retiring age No provisions in the Act that relate to retirement age Entitlement to benefits continues while the worker is totally unfit for work or cannot find work because of an incapacity due to a work related injury Weekly compensation paid for loss of earnings normally stops when the person reaches New Zealand Superannuation Qualifying Age (NZSQA) i.e. retirement age Between 1 April 1994 and 2001 the NZSQA was raised from 60 to 65 years If incapacity within between 24 and 12 months prior to NZSQA, weekly compensation can be paid for 24 months from the start date, provided they elect upon reaching NZSQA to receive weekly compensation rather than superannuation. If incapacitated within 12 months prior to NZSQA, or after reaching NZSQA, weekly compensation can be paid as well as any superannuation, until the later of: NZSQA date the first date of entitlement to weekly compensation After that 52 weeks, they can elect to receive either weekly compensation or national superannuation for a further year. Weekly compensation stops after that further year page 15

16 COVERAGE COVERAGE COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Cross border cooperative arrangements There are no formal cooperative arrangements with other jurisdictional compensation authorities Seacare: State/Territory Compensation Schemes have no application if Seacare applies As a result of agreement between the New South Wales and Victorian WorkCover Boards of Management, the following applies: (a) Victorian employers, who have a significant workforce in NSW (where significant is defined as the equivalent of one or more full time workers in NSW or more that 25% of the workforce in NSW) must take out policies in both States but only pay the premium on remuneration paid for work performed in that State (b) Victorian employers who have a workforce in NSW which does not meet the significant test (see (a)) need only obtain a Victorian policy (c) Employers in (b) are expected to have a relatively limited risk exposure. Where claims against those employers occur in NSW jurisdiction they will tend to be lodged in the Victorian jurisdiction However where an injury was incurred in the NSW jurisdiction and the claim was pursued in that jurisdiction it would be met by the NSW Uninsured Employer Fund The reverse would hold for NSW employers with an insignificant workforce where an injury occurs in Victoria There are no formal cooperative arrangements with other jurisdictional compensation authorities * Unless otherwise stated, information provided applies to both Comcare and Seacare page 16

17 COVERAGE WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND There are no formal cooperative arrangements with other jurisdictional compensation authorities There are no formal cooperative arrangements with other jurisdictional compensation authorities. Section 140 of the Act applies to interstate and overseas arrangements This section prescribes that the principal place of employment must be in Queensland to be eligible for compensation There are no formal cooperative arrangements with other jurisdictional compensation authorities There are no formal cooperative arrangements with other jurisdictional compensation authorities Cross border amendment to Workers Compensation Act 1951 commenced 13 January 1998 This limits the liability of employers to pay compensation only in respect of injures suffered by a Worker of the Territory The amendment defines who is a worker of the Territory and provides coverage for ACT workers undertaking temporary employment in other jurisdictions, including outside Australia N/A page 17

18 BENEFITS BENEFITS COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Weekly benefit rates 45 weeks: Normal weekly earnings (NWE) > 45 weeks: 75% of NWE Maximum: $1, (150% of Average Week Ordinary Time Earnings for Full-time Adults as published by ABS) Minimum: $ Additional for dependent spouse $77.04 and for each dependent child $38.50 Due to statutory changes to scheme on 12/11/97, benefit rates depend on date of entitlement Pre 12/11/97: Workers entitled to receive weekly benefits as at 12/11/97; old rates apply Post 12/11/97: 13 weeks: 95% of pre-injury average weekly earnings (PIAWE) (maximum: $924.00), less notional earnings > 13 weeks: If no current work capacity 75% of PIAWE; or if some work capacity either: (a) 60% of PIAWE less 60% of notional earnings, or (b) $554 less 60% of notional earning, whichever is the lesser > 104 weeks: Weekly benefits cease after 104 weeks of weekly payments unless: (a) worker is likely to have no current work capacity indefinitely benefits continue while this is the case until retirement; or (b) worker has a current work capacity and has returned to work at his/her maximum capacity Must be working at least 15 hours per week and earning at least $108 per week; and be employed/self-employed 26 weeks: Current weekly wage rate (maximum $1,259.20) or, where no award, 80% of worker s Average Weekly Earnings (AWE), not including overtime, shiftwork or penalty rates > 26 weeks: 90% of AWE (maximum $296.20) Plus Dependants: spouse $ child $ children $ children $ children $ For each additional dependant child in excess of 4: $83.90 > 52 weeks: The maximum period for which partially incapacitated workers can receive special benefits is 52 weeks Special benefits are paid at the basic award rate for up to 26 weeks post-injury, after which they are paid at 80% of the basic award rate for a maximum of 52 weeks After 52 weeks, partially incapacitated workers are able to claim the difference between current and pre-injury capacity Persons receiving Section 38 benefits on or before 1 August 1998 are eligible to receive up to 104 weeks of special benefits 52 weeks: Worker s Average Weekly Earnings (WAWE) to a maximum of 2 x State average weekly earnings (AWE): Maximum: $1, at 16/08/01 less actual earnings if partially incapacitated >52 weeks: (a) Total incapacity: 80% of WAWE subject to a maximum of 80% of 2 x State AWE; Maximum: $1, at 16/08/01 (b) Partial incapacity: 80% of difference between worker s adjusted notional weekly earnings (NWE) and earnings from employment, or potential earnings in suitable employment that the worker has a reasonable prospect of obtaining; Maximum $1, at 18/05/00 less actual or potential earnings if partially incapacitated >104 weeks: If worker partially incapacitated and not in suitable employment, 80% of difference between NWE and what the worker is deemed capable of earning in suitable employment Otherwise same as for >52 weeks >104 weeks: Payments can be discontinued at the end of 104 weeks of partial incapacity if the worker is no longer jobseeking, is unemployed mainly as a result of the labour market conditions, or has unreasonably rejected an offer of suitable employment NB These amounts are indexed every 1 April and 1 October * Unless otherwise stated, information provided applies to both Comcare and Seacare page 18

19 BENEFITS WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND A cap on weekly payments of $ applies for the duration of all claims. This amount is indexed annually (every 1 July) Workers whose earnings are prescribed by an industrial award First 4 weeks of claim: Weekly payments will consist of the rate of the worker s average weekly earnings payable under the relevant industrial award, plus any over award or service payment paid on a regular basis including overtime, bonuses or allowances up a maximum of $ Overtime, bonuses or allowances are averaged over the 13 weeks before the disability occurred 5th week onward: Weekly payments consist of the rate of weekly earnings payable under the relevant industrial award, plus any over award or service payment paid on a regular basis, but excluding overtime, bonuses or allowances. Maximum payment is $ Minimum rate: Subject to the cap of $927.40, the minimum rate of weekly earnings payable for the appropriate classification under the relevant award. Workers whose earnings are not prescribed by an industrial award First 4 weeks of claim: Weekly payments will consist of the worker s average weekly earnings (including overtime, bonuses or allowances) averaged over the year before the disability occurred up to a maximum of $ th week onward: Weekly payments step down to 85% of the worker s average weekly earnings; maximum payment is $ Minium rate: Subject to the cap of $927.40, the minimum rate of weekly earnings payable under the Minimum Conditions of Employment Act weeks: Workers under award or industrial agreement - the greater of: (a) 85% of the worker s normal weekly earnings (NWE); or (b) amount payable under the worker s award or agreement Workers not under award or agreement - the greater of: (a) 85% of NWE (b) 70% of QOTE QOTE (Queensland ordinary time earnings) is currently $ > 26 weeks: All workers - the greater of: (a) 65% of NWE (b) 60% of QOTE >104 weeks to 5 years: Workers with workrelated impairment (WRI) of more tha 15% - the greater of: (a) 65% of NWE (b) 60% of QOTE Workers with WRI less than or equal to 15% receive an amount equal to the Department of Social Security single person pension rate Total amount payable for weekly benefits is $127, Refer to Queensland Recent Developments on page weeks: 100% of weekly payment i.e. the greater of normal weekly earnings (NWE) for the period of twelve months prior to the period of incapacity or ordinary time rate of pay for work engaged in prior to incapacity > 13 weeks: 85% of weekly payment > 52 weeks: 70% of weekly payment Entitlement to weekly payments ceases on the expiration of 10 years after the date of the incapacity; Minimum rate: $ weeks: Normal weekly earnings (NWE) i.e. worker s normal working hours per week at hourly rate, including overtime and shift penalties where it was worked in a regular and established pattern > 26 weeks: Whichever is the greater of: (a) 75% of NWE to a maximum of $1,200.15; or (b) $ plus $ for a dependant spouse and $50.01 for each dependent child; or 90% of NWE (whichever is the lesser) 26 weeks: Sick pay/normal weekly earnings > 26 weeks: Worker: $ Spouse: $ Each dependent child: $ Indexed in line with the CPI For weeks 2-5 of incapacity, weekly compensation is paid at 80% of the short-tem rate (defined on page 21). From the 5th week, weekly compensation is paid at 80% of the longterm rate (defined on page 21). Maximum weekly compensation is $NZ1, Weekly compensation is reduced by a proportion of any earnings derived during the period of incapacity. A minimum rate for fulltime earners applies after 5 weeks of incapacity, set at 80% of $NZ289.09, or 80% of $NZ for people under the age of 20 years Payment of weekly compensation continues until: the person is assessed as no longer incapacitated for normal work, or has a capacity for work for which they are otherwise suited, or the person returns to employment and derives earnings higher that their pre-injury earnings the upper age limit rules apply page 19

20 BENEFITS BENEFITS COMMONWEALTH* VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA Basis for determining weekly benefits Normal weekly earnings including: Allowances payable each week (excluding expenditure reimbursement or an allowance payable in respect of special expenses incurred); average of overtime worked on regular basis; income from job outside Commonwealth employment if injured in parttime Commonwealth employment Seacare: Normal weekly earnings as defined in Section 13 of the Act Either Pre-Injury Average Weekly Earnings (PIAWE) during the 12 months preceding injury if the worker was continuously employed by the same employer for this period; or PIAWE for the period less than 12 months preceding the injury for which the worker has been continuously employed by the same employer PIAWE is calculated at the worker s ordinary time rate of pay for the worker s normal number of hours per week Regular overtime and regular shift allowance are to be included in the calculation of a worker s weekly compensation rate for the first 26 weeks Average weekly earnings during 12 months preceding injury if the worker was continuously employed by the same employer for this period or; if less than 12 months, average weekly earnings by a person in the same grade at the same work of same class of employment Pre-Injury Average Weekly Earnings include: reference to ordinary weekly rate of pay applicable under industrial law; overtime; and other amounts payable under common industry or other practice Average weekly earnings refers to the amount the worker could reasonably expect to earn for a week s work if not disabled and includes: wages and/or salary; overtime if regular and established, substantially uniform and continuing; non-cash entitlement (e.g. loss of use of company vehicle); eligible allowances paid in recognition of a skill (e.g. First Aid allowance) * Unless otherwise stated, information provided applies to both Comcare and Seacare page 20

21 BENEFITS WESTERN AUSTRALIA QUEENSLAND TASMANIA NORTHERN TERRITORY A.C.T. NEW ZEALAND The cap on weekly payments of $ is obtained by multiplying by 1.5 the average of the amounts that the ABS publish as all employees average weekly total earnings in Western Australia for pay periods ending in the months of May, August, November and February preceding the financial year. This amount is indexed annually (every 1 July) Workers whose earnings are prescribed by an industrial award First 4 weeks: Weekly earnings payable as per the relevant industrial award, plus any over award or service payment paid on a regular basis including overtime, bonuses or allowances. Overtime, bonuses or allowances are averaged over the 13 weeks before the disability occurred 5th week onward: Weekly earnings payable as per the relevant industrial award, plus any over award or service payment paid on a regular basis, but excluding overtime, bonuses and allowances Workers whose earnings are not prescribed by an industrial award First 4 weeks: Average weekly earnings payable (including overtime, bonuses or allowances) are averaged over the year before the disability occurred 5th week onwards: Weekly payments consist of 85% of the worker s average weekly earnings, which are averaged over the year before the disability occurred. Total Weekly Payments Total weekly payments of compensation and lump sum compensation are normally limited to the Prescribed Amount (the maximum total amount payable in weekly payments and lump sum settlements, which amounts to $126,145 current until 30 June 2002). In certain circumstances, at the discretion of the Conciliation and Review Directorate, an additional amount of up to $50,000 may be granted in weekly payments Normal weekly earnings (NWE) of the worker from employment (continuous or intermittent) in the 12 months before the day of the injury, including amounts paid immediately prior to the injury in overtime, higher duties, penalties and regular allowances Does not include one-off periods of overtime and further exclusions also apply as per the definition of wages The total statutory maximum payable amounts to $127,900 1 This includes lump sum and weekly compensation benefits. The total lump sum and weekly benefits, cannot be greater than the total statutory compensation payable Additional lump sum and gratuitous care lump sums are not included in this maximum 1 Refer to Queensland Recent Developments p44 Normal weekly earnings (NWE) are the average weekly earnings of the worker over the period of 12 months ending at the commencement of the period of incapacity Where it is impracticable to compute the NWE of the worker under that employer, the NWE are taken to be the NWE of a person employed in the same grade at the same work by the same employer NWE includes all payments, allowances or benefits received during the period excluding any long service benefit or entitlement, bonus or gratuity Generally overtime is excluded unless it was a regular and established pattern of work Normal weekly earnings (NWE) are a worker s normal number of hours per week, at his/her hourly rate, including overtime and shift penalties where it was worked in a regular and established pattern NWE also includes: climate; district; leading hand and qualification allowances and service grants In the case of a worker who is, entitled to sick leave payments; an amount equal to the sick leave payment that the worker would receive for that week being on sick leave on full pay In any other case: an amount equal to earnings that would, but for the injury, be payable to the worker for that week It does not include overtime, allowances for special expenses or income from professional sporting activity For a permanent employee:. the short-term calculation is based on earnings in the 4 weeks prior to incapacity divided by the number of weeks in which they were derived.the long-term calculation is based on earnings, from that job, in the 52 weeks prior to incapacity divided by the weeks over which they were derived For a non-permanent employee: the short-term calculation is based on all non-permanent employee earnings in the 4 weeks prior to incapacity divided by the actual number of weeks in which they were derived the long-term calculation is based on all non-permanent employee earnings in the 52 weeks prior to incapacity divided by 52 For a self-employed person, entitlement is generally based on earnings in the most recently completed taxyear. Shareholder employees have a similar assessment. page 21

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